Judge John C. Gastelum, Case NationalCollegiateStudentLoanTrust2006-4vs.Soobzokov 2023-12-07 Tentative Ruling

Judge: John C. Gastelum, Case: NationalCollegiateStudentLoanTrust2006-4vs.Soobzokov, Date: 2023-12-07 Tentative Ruling

Claim of Exemption – Wage Garnishment

Ruling: Off Calendar– no hearing will be held. The hearing on the Claim of Exemption submitted by Judgment Debtor Timerlan Soobzokov is CONTINUED to 9-19-2023, at 2 pm in Department C11.

While the Notice of Hearing indicates service by mail on the Judgment Debtor, at the same address listed on the Claim of Exemption (ROA No. 46), the notice provided is unclear. The Notice of Hearing filed by Judgment Creditor on July 10, 2023, initially listed a hearing date of August 17, 2023, in Department C3 at 9:30 a.m. (ROA No. 48.) The Notice filed with the Court has the above information crossed out and replaced with the instant hearing date of August 8, 2023, 2:00 p.m. in Department C11. (Id.) It is unclear, whether the changes were made pre- or post- service and, consequently, unclear whether the levying officer and Judgment Debtor received notice of the correct hearing date.

The Court notes the Claim of Exemption filed on July 14, 2023, suggests notice was defective. The Notice of Hearing included within the Claim of Exemption packet, apparently filed by the levying officer pursuant to Code of Civil Procedure section 706.105, subdivision (e), lists only the August 17, 2023 hearing date. (ROA No. 46.)

In addition to the above, the Notice of Opposition to Claim of Exemption does not include a Proof of Service. (ROA No. 51.) At best, the Proof of Service attached to the Notice of Hearing states: “I served the attached Notice of Hearing on Claim of Exemption and the attached Notice of Opposition to Claim of Exemption…” (ROA No. 48.) As a Notice of Opposition was not attached to this filing, this statement is unclear.

Based on the above notice and service defects, the Court finds “good cause” to continue the hearing. (Code Civ. Proc., §706.105, subd. (e).)

Judgment Creditor is ordered to provide notice of the continued hearing date to the levying officer and Judgment Debtor and to file a Proof of Service demonstrating the same, not less than 20 Court days prior to the continued hearing date. Further, Judgment Creditor shall file a clear Proof of Service, which demonstrates service of the Notice of Opposition.

Additionally, the hearing is continued for “good cause,” to permit the Judgment Debtor to submit documentary evidence which further substantiates his claimed expenses.

Pursuant to Code of Civil Procedure section 706.051, subdivision (b), except as specified in certain exceptions inapplicable herein, “the portion of the judgment debtor’s earnings that the judgment debtor proves is necessary for the support of the judgment debtor or the judgment debtor’s family supported in whole or in part by the judgment debtor is exempt from levy under this chapter.” (Code Civ. Proc., §706.051, subd. (b).)

“Although the burden of proof lies with the party claiming the exemption, exemptions statutes are generally construed in favor of the debtor.” (Kono v. Meeker (2011) 196 Cal.App.4th 81, 86; See also Code Civ. Proc., §703.580(b)).

Here, within the Claim of Exemption served by Judgment Debtor Timerlan Soobzokov, Mr. Soobzokov indicates all his earnings are necessary for the support of himself and his family. (¶2 of Claim of Exemption [ROA No. 46]); however, the Court finds it has been provided with insufficient information, to support such a conclusion. Pursuant to Code of Civil Procedure section 703.580, subdivision (c), “[i]f not satisfied, the court shall order the hearing continued for the production of other evidence, oral or documentary.”

Judgment Debtor may file a declaration and any documentary evidence, addressing his claimed expenses, no later than 9 court days prior to the continued hearing. The Court requests, in particular, clarification as to the claimed “Entertainment” expense. Judgment Creditor may respond to the same, no later than 5 court days prior to the continued hearing date.

Judgment Creditor shall provide notice of this order to the Judgment Debtor, at the same time that Judgment Creditor serves its Notice of Hearing and Notice of Opposition.